Madras High Court
Stephen vs State on 13 April, 2006
Author: P.D.Dinakaran
Bench: P.D.Dinakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/04/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU Criminal Appeal No.405 of 2003 Stephen, S/o.Ramaiyan ... Appellant Accused vs. State, by Inspector of Police, Karungal Police Station, Karungal. ... Respondent Complainant Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Additional Sessions Judge, Kanyakumari District at Nagercoil, dated 10.10.2002, in Sessions Case No.122 of 1999. !For Appellant ... Mr.M.Soori for Mr.John Jayakumar ^For Respondent ... Mr.K.Radhakrishnan, Additional Public Prosecutor. :JUDGMENT
(The judgment of the Court was delivered by P.D.DINAKARAN,J.) I - JUDGMENT UNDER APPEAL The appellant is the sole accused in Sessions Case No.122 of 1999 on the file of learned Additional Sessions Judge, Kanyakumari District at Nagercoil. He questions the correctness of the judgment, dated 10.10.2002, rendered in the above stated sessions case, whereunder the appellant was convicted for the offence punishable under Section 302 I.P.C. and sentenced to undergo imprisonment for life with a fine of Rs.10,000/- (Rupees ten thousand only) in default to undergo rigorous imprisonment for six months.
II - CHARGE
2. The charge against the appellant is that on 21.12.1998 at 5.00 p.m., in front of the shop of one Paulraj (the deceased), with the knowledge and intention to kill the said Paulraj, he attacked with a knife on the left side chest of the deceased, as a result of which Paulraj died, which act is punishable under Section 302 IPC. For the sake of convenience, the appellant will hereinafter be referred to as 'the accused'.
III - PROSECUTION CASE
3. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows:
(a) P.W.1 is the elder brother of the deceased and P.W.2 is his elder sister. The deceased was running a provision shop in the occurrence village.
(b) At about 5.00 p.m. on 21.12.1998, the accused went to the shop of the deceased requesting for some provisions on credit basis, for which, the deceased refused to oblige and said that unless the old dues are settled, he will not be given provisions on credit basis. The accused again requested for the same, but the deceased denied. Irked by that, the accused, addressing the deceased in filthy language, took out a knife from his waist and stabbed the deceased on his left side rib and ran away from the scene. This was witnessed by P.W.2 and this is said to be the immediate motive to the occurrence.
(c) At that time, P.W.1, who is the brother of the deceased, after his day's work, was taking bath in a canal running at a distance of 50 feet from the shop of the deceased. He heard the hue and cry from the shop. He also saw the accused stabbing the deceased on his left rib with a knife in front of the shop along with some more persons. P.W.1 and P.W.4 took the deceased to Kottar Hospital.
(d) P.W.16 Dr.Lalitha was on duty in the Kottar Government Hospital at 7.10 p.m. on 21.12.1998. She examined Paulraj (the deceased) at 7.10 p.m. and found him dead. Ex.P-11 is the Accident Register given by her.
(e) P.W.14 Head Constable, attached to Kottar Police Station, received the death intimation from the hospital and informed the same to Karungal Police Station through wireless. At 9.00 p.m. he handed over the death intimation, Ex.P-9, to P.W.15.
(f) P.W.15, Sub-Inspector of Police, on receipt of Ex.P-9 from P.W.14 went to the Hospital and examined P.W.1 and recorded the statement (Ex.P-1) given by him. He returned to the police station at 11.00 p.m. and registered a case in Crime No.1040/1998 under Section 302 IPC and prepared Ex.P-10 printed FIR. He despatched the material records to the Court as well as to the higher officers through P.W.12 Head Constable.
(g) P.W.21, Inspector of Police, received the FIR at 4.00 a.m. on 22.12.1998. He reached the occurrence place at 6.00 a.m., observed it and prepared Ex.P-4, observation mahazar, in the presence of P.W.5 and another. He also drew Ex.P-20 rough sketch. He caused the place of occurrence to be photographed with the help of a photographer. He recovered bloodstained earth (M.O.4) and sample earth (M.O.5) from the place of occurrence under Ex.P-5 mahazar. He examined P.W.2 and recorded her statement. He went to the Kottar Government Hospital and conducted inquest over the dead body of Paulraj in the presence of panchayatdars and prepared Ex.P-22 inquest report. He made arrangements to take photographs of the dead body with the help of a photographer. He gave requisition (Ex.P-12) to the hospital authorities for conducting postmortem over the dead body.
(h) P.W.17 is the Doctor who conducted autopsy over the dead body. During postmortem, he found an incised injury 2cm x 1 cm depth, not probed, at the left midaxillary line on the 5th IC space of left chest. On exploration of the wound, he found that it was communicating into the thoracic cavity. The doctor was of the opinion that the deceased would have died of shock and haemorrhage due to injury to lung and heart. Ex.P-13 is the postmortem certificate.
(i) P.W.13, Police Constable, after postmortem, recovered M.Os.6 to 9, personal wearing apparel of the deceased, from the dead body and handed over the same to the Inspector of Police under Ex.P-8, special report prepared by him.
(j) P.W.21, Inspector of Police, examined P.Ws.12, 13 and 15 and recorded their statements. P.W.19, Inspector of Police, took up the further investigation in the case. As the accused surrendered before Kuzhithurai Magistrate's Court, P.W.19 took him into police custody and examined him on 8.1.1999. The accused gave a voluntary statement, admissible portion of it is Ex.P-6, pursuant to which M.O.2, bloodstained knife, was seized under Ex.P-7 mahazar, attested by P.W.10 and another. He examined some more witnesses and recorded their statements. He gave Exs.P-15 and P-16, requisitions, to the court for sending the material objects for chemical examination.
(k) P.W.20, Inspector of Police, continued the investigation. He examined the doctors, P.Ws.16 and 17, and recorded their statements. On 29.04.1999 he examined some other witnesses and recorded their statements. After receipt of Ex.P-18, Chemical Examiner Report and Ex.P-19, Serologists report, P.W.20, filed the final report in the court against the accused on 30.04.1999.
4. To prove the case against the accused, the prosecution examined 21 witnesses as P.Ws.1 to 21 and marked Exs.P-1 to P-21 as well as M.Os.1 to 9.
IV - DEFENCE
5. When the accused was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances found against him in the evidence of Prosecution witnesses, he denied them as false. Neither oral evidence nor documentary evidence was produced before the court at the instance of the accused.
V - JUDGMENT OF THE TRIAL COURT
6. The trial court, on consideration of the oral and documentary evidence placed before it, found the accused guilty, convicted and sentenced him as stated earlier. Hence the present appeal.
VI - CONTENTION OF THE DEFENCE 7.1. Mr.M.Soori, learned counsel appearing for the accused, contends that the prosecution examined two witnesses, namely P.Ws.1 and 2, who are brother and sister of the deceased, to speak about the occurrence, among whom the evidence of P.W.1 is not trustworthy, as his evidence before the court is entirely different from that of the version mentioned in Ex.P-1 complaint given by him. According to the learned counsel, in his oral evidence, P.W.1 has categorically stated that 10 to 15 persons stabbed his brother (the deceased), but, in the earliest document, namely Ex.P-1, he has stated that the accused alone stabbed his brother and this contradiction is a material one, which is fatal to the prosecution case. Learned counsel further submitted that if the evidence of P.W.1 is eschewed, there is no other evidence to corroborate the evidence of P.W.2, who is the sister of the deceased and an interested witness and therefore, the conviction of the accused is liable to be set aside.
7.2. Alternatively, inviting our attention to the evidence of P.W.2, who speaks about the immediate motive to the occurrence, the learned counsel for the accused submits that pursuant to the sudden quarrel and due to sudden provocation and after having lost the power of self-control, the accused gave only one blow with a knife and thus, he is entitled to the benefit under Exception 1 to Section 300 IPC and hence, the learned counsel seeks for modification of conviction and sentence.
VII - CONTENTION OF THE PROSECUTION 8.1. Per contra, the learned Additional Public Prosecutor contends that there is overwhelming evidence, namely the evidence of P.Ws.1 and 2, coupled with medical evidence which tallies with that of P.Ws.1 and 2 to establish that the accused attacked the deceased and caused his death and therefore there is no need to interfere with the well considered judgment of the trial court. 8.2 It is also contended by the learned Additional Public Prosecutor that even though P.W.1, in his evidence, stated that the accused along with other persons had stabbed his brother, viz., the deceased, even in the very first statement, viz., Ex.P-1, which forms the basis for the F.I.R., he had clearly mentioned the name of the accused and stated specifically that the accused stabbed the deceased and the said statement of P.W.1 in Ex.P-1 corroborates with that of evidence of P.W.2 and therefore, the prosecution has proved the guilt of the accused beyond all reasonable doubt.
8.3. Learned Additional Public Prosecutor further contends that the evidence of P.Ws.1 and 2, who are eyewitnesses to the occurrence, is cogent and clear and there is every reason to infer from their evidence that the accused had knowledge and intention to kill the deceased and in such circumstances the accused is not entitled to any exception to Section 300 IPC and the judgment of the trial court does not require any variation or modification and the appeal is liable to be dismissed.
VIII - CONSIDERATION AND FINDINGS
9. We have given our careful consideration to the submission made by the learned counsel on either side and also perused the records.
10. The case of the prosecution is that the deceased Paulraj died due to homicidal violence stands proved by the evidence of P.W.16, the doctor who examined the deceased first and P.W.17, the doctor who conducted autopsy over the dead body, coupled with Ex.P-11, accident register and Ex.P-13 postmortem certificate.
11.1. Now the question that arises for consideration in this appeal is whether the prosecution has proved its case that it was the accused who attacked the deceased, due to which he died.
11.2. The prosecution examined P.Ws.1 to 3 to speak about the occurrence, among whom, P.W.3 did not support the case of the prosecution and turned hostile. Therefore, we have the evidence of P.Ws.1 and 2. 11.3. P.W.1, who is the brother of the deceased and who speaks about the occurrence and the overt act attributed to the accused in his evidence, would state that when he was taking bath in the canal, which is running 50 feet away from the shop of the deceased, he heard the hue and cry from the shop and saw the accused and some other persons stabbing the deceased. But in Ex.P-1, complaint, given to the police, which is the earliest document and based on which a case was registered, P.W.1 has stated that the accused alone stabbed the deceased. This contradiction, as highlighted by the learned counsel for the appellant, in our opinion, is a major contradiction, which throws every light to disbelieve the evidence of P.W.1.
11.4. But, however, the motive behind the occurrence as well as the overt act attributed to the accused has been clearly and specifically spelled out by the evidence of P.W.2, the sister of the deceased. On going through her evidence, with utmost care and caution, we find that her evidence is cogent, convincing and trustworthy. According to her, for taking tea, she went to the shop of her brother (the deceased) and at that time the accused was asking the deceased to give some provisions on credit basis, but the deceased turned down his request. It is her further evidence that when the accused again pressurised the deceased to give provisions, the deceased was firm in his stand and he came out of the shop and there arose a wordy altercation between the accused and the deceased and immediately thereafter, the accused took a knife from his waist and stabbed on the left side rib of the deceased and then, ran towards his house. The evidence of P.W.2 inspires the confidence of the court and nothing worth mentioning was brought on record to demoralise her evidence. 11.5. Further, the medical evidence of P.Ws.15 and 17 corroborates with that of P.W.2. Therefore, we have no hesitation to hold that it is the accused and the accused alone, who attacked the deceased at the time and manner as projected by the prosecution.
12. Now coming to the alternative submission of the learned counsel for the appellant that the accused is entitled to the benefit under Exception 1 to Section 300 IPC, we went through the evidence on record. P.W.1 in his evidence has stated that there was no previous enmity between the accused and the deceased. Further, there is nothing in the evidence of P.W.2 to show that the accused had any motive against the deceased. It is the evidence of P.W.2 that there was a wordy altercation between the accused and the deceased immediately prior to the occurrence, as referred to earlier. Therefore, it becomes clear that the accused, without any premeditation, upon sudden provocation, gave only one blow on the left side rib of the deceased, which later proved to be fatal, as per the evidence of P.W.17, the doctor who conducted postmortem. 13.1. In this regard, it is apt to refer the law on the point as settled by the decisions of the Apex Court. In Willie (William) Stanley v. State of M.P., AIR 1956 SC 116, the Supreme Court has held that where there was a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey stick had been given on the head, the said offence would amount to culpable homicide punishable under Section 304 Part II IPC.
13.2. A Full Bench of the Apex Court in Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32, after considering the decisions relating to solitary blow and causing one injury during sudden quarrel, namely,
(i) Tholan v. State of T.N., (1984) 2 SCC 133: 1984 SCC (Cri) 164;
(ii) Jagrup Singh v. State of Haryana, (1981) 3 SCC 616: 1981 SCC (Cri) 768;
(iii) Randhir Singh v. State of Punjab, (1981) 4 SCC 484: 1981 SCC (Cri) 856;
(iv) Kulwant Rai v. State of Punjab, (1981) 4 SCC 245: 1981 SCC (Cri) 826;
(v) Hari Ram v. State of Haryana, (1983) 1 SCC 193: 1983 SCC (Cri) 159;
(vi) Jagtar Singh v. State of Punjab, (1983) 2 SCC 342: 1983 SCC (Cri) 459;
(vii) Ram Sunder v. State of U.P., Criminal Appeal No. 555 of 1983, decided on October 24, 1983; and
(viii) Virsa Singh v. State of Punjab, 1958 SCR 1495: AIR 1958 SC 465: 1958 Cri LJ 818, held as follows:
"... 18. In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death. The Supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc. as mentioned above only to assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result. It is held in all these cases that there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e. only had knowledge of the consequences. These circumstances under which the appellant happened to inflict the injury it is felt or at least a doubt arose that all his mental faculties could not have been roused as to form an intention to achieve the particular result. We may point out that we are not concerned with the intention to cause death in which case it will be a murder simpliciter unless exception is attracted. We are concerned under Clause Thirdly with the intention to cause that particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, Clause Thirdly is attracted and it would be murder unless one of the exceptions to Section 300 is attracted. If on the other hand this ingredient of 'intention' is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that Clause Thirdly is not attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable under Section 304 Part II IPC."
13.3. In Mavila Thamban Nambiar v. State of Kerala, AIR 1997 SC 687, where the accused gave one blow on the chest of the deceased and the death was on account of such one blow by the accused, the Apex Court held that the intention to cause death cannot be imputed to him but it would be reasonable to infer that he had knowledge that any injury on the vital part of the body of the deceased would cause death and so he can be convicted under Section 304 Part II IPC.
14. Considering the facts and circumstances of the case and keeping in mind, the above principles laid down by the Apex Court, we are of the view that the act of the accused attracts Exception 1 to Section 300 IPC and thus, punishable under Section 304 Part-II IPC. Accordingly, the conviction and sentence imposed on the accused under Section 302 IPC warrants interference by this Court.
IX - DECISION
15. In the result, the conviction and sentence imposed on the appellant/accused under Section 302 IPC are set aside and instead, he is convicted under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/- and a compensation of Rs.9,000/-, which shall be paid within a period of eight weeks from the date of receipt of a copy of this order, failing which the accused shall undergo one year rigorous imprisonment as default sentence. The compensation amount so paid shall be given to P.W.2, the sister of the deceased. The sentence already undergone shall be given set off. The appeal is allowed to the extent indicated above.
ATR/gb.
Copies to:
1. The Additional Sessions Judge, Kanyakumari District at Nagercoil.
2. The Inspector of Police, Karungal Police Station, Kanyakumari District.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.